54 Tex. 609 | Tex. | 1881
We are of opinion that the court erred in its charge and in refusing to give the charges asked.
There was testimony tending to show the rules of the turf in western Texas respecting horse racés and contracts for horse racing like that in the present case, and the sufficiency of it was for the consideration of the jury and not the court.
If the proof was sufficient to satisfy the jury as to the existence of the rules of the turf, and what those rules were, it was proper that they should consider them in
“In commercial transactions, extrinsic evidence of custom and usage is admissible to annex incidents to written contracts in matters with respect to which they are silent. And the same rule has been applied to other transactions in life.” Story on Contracts, 681, n. It applies as well to horse racing as to any other business. The contract for the horse race in this case must be read, and its. meaning ascertained, by the light of the circumstances under which it was made, and the rules, if such there were, regulating horse racing. See the opinion in this case in 42 Tex.; Wharton on Ev., § 961.
We must assume, where the contract is silent, that the parties to it had in view the rules of the turf, and that in fact they formed part of the contract, and explain its terms and meaning and their minds in making it. Perhaps if we were to undertake the construction of the contract hr this case without some knowledge of the general rules which apply to the subject, we might miss very widely its true meaning, or its proper construction. It is an agreement “ to run a horse race; Walker gives sixty feet and rides 140 pounds. The horses are to come up to the mark and start at the word ‘ Go.’ Either party failing to come up and run, forfeits $250, and Parchman is chosen to give the word and hold the stakes.” What is meant by the choice of one to give the word, and his functions, or by coming up to the mark and starting at the word, and the failure to run, might not to us be very apparent, but read with the information furnished by the rules of racing, may have a very fixed and definite meaning. When did the race commence? What consequences followed from pronouncing the important word “Go?” These are questions which could only be answered upon hearing proof of their meaning, in the business or pur
There is no violation of any rule respecting the alteration of written instruments by the parol proof in the admission of this testimony. It is not to vary the contract, but to explain the meaning of the men who made it (Whart. Ev., 961), and the terms they employ in the subject matter of the contract.
If, then, the proof disclosed, as we think it did, tended to prove that by the rules of racing, upon the giving of the word by the person selected as the mutual agent of parties to give it, the race was begun; that he had no power to recall the horses; that the horse that did not start lost the race, and the horse that ran through won it; that the parties took all the risks of frightened horses or imperfect or boisterous utterances,—it was error to refuse to charge as asked by the defendants, and it was error to make the result of the case depend, as the judge makes it in his charge to depend, upon the manner in which the word was given, and whether a fair test was prevented of the speed of the horses by the manner of giving the word. Parchman, who gave the word, was the agent of the plaintiff as of the defendant to give it, and unless complicity or fraud upon his part were shown, we think without regard to any racing rules, Armstrong cannot charge upon the defendants any wrong he has suffered from the negligence or unskillfulness of his own agent, whereby his horse was hindered from starting. And it may be, that the effect attributed to the giving of the word among racing men, would have a tendency, as a general rule, to insure that the best horse should win. We can see how it would prevent vexatious and worrying false starts by cunning jockeys, devised to insure that the race should not be to the swift and eager, but to the sluggard and coldblooded. The objection made to the judgment because of
We think this judgment should he reversed and remanded for the errors indicated.
Reversed and remanded.
[Opinion delivered March 30, 1881.]
